Blogmeister’s Note: With the Federal Register publication of an order deleting the Fairness Doctrine (and two other sets of rules) from the FCC’s rules, we have reached the end of an era of sorts.  Two of our bloggers share their thoughts on the occasion.

FCC Eliminates Non-existent Burdens by Abolishing Obsolete and Ineffective Rules

Agency applauds its correction of its own mistakes, oversights and inaccuracies

By Donald Evans

On August 24, the FCC moved aggressively to attack bloat, inefficiency and waste – in its own rules.  With considerable fanfare, Chairman Genachowski announced that the agency was eliminating 83 outdated and obsolete media rules as part of its effort to “clear the path for greater competition, investment and job creation.”  While the rule weeding effort apparently began last spring, it is consistent with the Obama Administration’s June 13, 2011 call for all federal administrative agencies to seek out and destroy regulations that impose unnecessary burdens on businesses and thus impede competitiveness.  

That sounds like a worthwhile initiative on its face, but we have to question whether deleting regulations that no longer have any effect is what the Obama administration had in mind.  Wouldn’t it be more useful to eliminate rules that actually create burdens, rules that businesses are actually required to obey?  Rather than “grow[ing] our economy, creat[ing] jobs, and benefit[ing] all Americans,” as ballyhooed by the Chairman, the FCC’s action actually does none of those things.  In fact, we note that the 83 banished rules take up, by our estimate, roughly ten pages of printed text in the Code of Federal Regulations.  Assuming no new regulations are adopted by the Commission before the next printing of the Code, the only tangible effect of the rule deletion might be to eliminate the job of the hapless lumberjack who would have cut down the tree necessary to print those pages.

The now-excised rules fall into three rough categories: (1) those that refer to the Fairness Doctrine and its corollaries, a policy which was abolished more than 20 years ago but which still lurked as an “unnecessary distraction” in the FCC’s regs; (2) the “broadcast flag” rules which were outlawed by the Court of Appeals in 2003; and (3) the complaint process for cable service tiers, which the FCC lost the authority to regulate in 1999.  As explained by the Commission, some of the rules had been left in by simple oversight – hardly a comforting thought given that FCC regulations have the force of law and their violation is punishable by fines. 

Being relieved of obligations that no longer exist is hardly cause for rejoicing in the broadcast or cable industry, and few members of the industry have matched the Chairman’s enthusiasm about the “reform” effort.   A simple reform like eliminating the public file rule, on the other hand, would actually spare businesses hundreds of thousands of hours of needless paperwork – perhaps that could be next up on the reform agenda.


The Fairness Doctrine: Forgotten, and Now Gone

By Harry Cole

It’s official.  The Fairness Doctrine is gone, purged from the FCC’s rule book.  The Commission’s terse order deleting the Fairness Doctrine (and a couple of other moribund rules), initially released last month, has now been published in the Federal Register.  That publication marks the final step in the exorcism of the Fairness Doctrine demon.  We can call the time of death: September 9, 2011.

Before we crack open the champagne and toast this event – which a number of folks, including Chairman Genachowski, would have us celebrate – let’s think about that.

The Fairness Doctrine was abandoned by the Commission, with the approval of the courts, some 20 years ago.  The other two sets of rules excised from the books along with the Doctrine had similarly died quiet regulatory deaths years ago.  As the Commission’s order correctly says, all these rules were already “obsolete” and “without legal effect”.  So their formal removal now has at most nothing more than symbolic meaning.

Is this cause for celebration?

It’s as if a local Animal Control Officer claimed with some fanfare that he had greatly protected the public – but it turned out that his claim involved not saving the community from dangerous wild animals, but rather merely cleaning up a couple of harmless roadkill carcasses that had been bleaching in the gutter for years.  Big deal.  To be sure, removal of such carcasses – much like removal of the Fairness Doctrine – neatens things up a bit.  But was it necessary?  Not really.  And, more to the point, did it have any perceptible impact on the greater public interest?  Not in the least. 

The Chairman touts this regulatory clean-up effort as “clearing the path for greater competition, investment and job creation”.  But it’s impossible to imagine that anybody’s path to greater competition, investment and/or job creation was hindered in any way by the ghost of the Fairness Doctrine flickering faintly in some obscure and unread passages of the rules.  If we have allowed the Doctrine to hinder anything in the past 20 years, that says a lot more about us than about the Doctrine.

Still, the official removal of the Fairness Doctrine from the rules does constitute something of a milestone, at least for communications lawyers of a certain age who came into the practice when the Doctrine was alive and kicking.  That once fearsome Doctrine is now gone.  Let’s happily bid it good-bye – not farewell, and certainly not au revoir . . . just good-bye.